Category Archives: 4th Amendment – Search & Seizure

Tuesday morning update: the trial has been postponed. As of this morning, the State is asking to stay the trial to appeal the court’s ruling yesterday that the notebook written by Lavaya May would not be admissible. The problem with that is, the Defendant had demanded a speedy trial, so the state is asking the judge to stay the speedy trial until the appeal can be ruled on. That’s extraordinary relief. WINK news is reporting that the trial will be put off up to 90 days, but it sounds like things are very much in flux, at this point.

May Accused of 2nd Degree Murder, Conspiracy to Commit Murder and other charges

May Allegedly got persuaded 2 of her friend to kill 58-year-old Ted Lee

May, who is still a minor, claims Lee started molesting her when she was 8-years-old

Lavaya May

The trial and jury selection for the murder trial of Lavaya May is scheduled to start Tuesday morning, the trial could take 2 or even 3 weeks to complete, according to the attorneys handling the case. Although May was 16 at the time, she has been charged as an adult, and is facing life in prison on the murder charge.

The prosecution just found out that they lost some of their evidence after a day-long suppression hearing. The judge heard evidence and argument on Friday, and just Monday afternoon ruled that the state cannot introduce evidence from a journal that Ms. May was keeping in custody.

That’s the second suppression loss for the state, as the court previously ruled that the statement Ms. May made when she was arrested was illegally obtained in violation her rights. After the killing, May and the others fled out of state. When they were arrested, an attorney ad-litem who had been appointed to May contacted the Sheriff’s office and indicated she was invoking Ms. May’s right to have her attorney present. Detectives, recognized the issue, and contacted the State Attorney’s office, who incorrectly advised them to proceed with the interrogation of the juvenile May without her attorney. It was a clear violation of her right to counsel, and now they will not get to use her statement, either.

Jonathan Ruffini

The State’s star witness will likely be the co-defendant, Jonathan Ruffini. Ruffini, who was 18-years-old at the time of the offense, a year ago, has already entered a guilty plea, and agreed to accept 25 years in prison for his role, in exchange for agreeing to testify. The other defendant, then-23-year-old Hunter Tyson, has also accepted a plea agreement for 40 years in prison, and there is no indication in his court file that he was given consideration for cooperation. It’s anticipated that Ruffini will testify that he and Tyson committed the murder at the behest of his friend/girlfriend May, due to her complaints about being molested by Lee. (Lee doesn’t have a DOC photo yet, as he’s being held in the Lee County Jail in anticipation of his being called to testify in the May case. There have been some changes in his story, and only recently did the state list him as a witness, so he may not be that reliable for them.

Hunter Tyson

The challenge for the state is substantial, as it appears pretty clear that Ruffini and Tyson committed the murder, by baseball bat and knife- with Tyson being the primary killer. To prove a murder, they don’t have to show that May personally took part in the killing, but they can prove that she was a principal to the murder if she aided, abetted, or even encouraged the crime. Under Florida’s principal theory, she is

Hunter Tyson in DOC

just as guilty as the others if she is found to be a principal. She is also charged with Conspiracy, for plotting the killing with the others. She may garner some sympathy, if the Defense is able to introduce the allegations that Lee had molested her for years. However, that is not legal justification for murder, as the abuse was in the, and would not present an immediate danger for self-defense/justifiable use of deadly force. More likely, the Defense team is going to try to frame the case as an act that was done by Tyson and Ruffini on their own, and not at the instigation of May. Both Tyson and Ruffini have admitted to committing the murder, and plead out to murder charges, but May can only bring that up if they are called in to testify. She can still blame Tyson, even if his admission is not admitted. Ruffini’s statement points the finger primarily at Tyson, and the Defense will try to say he’s blaming May to get a lesser sentence. The trial will be interesting to watch.

The Naples Police Department is currently fighting a Federal lawsuit for police misconduct, and the allegations that have come out in the course of the case are more and more shocking. In an affidavit filed Monday, a former Naples officer stated that he and his fellow officers were “constantly pressured” to increase numbers for arrests, stops, and citations, and that supervisors would chastise officers who did not “produce statistics”. The affidavit makes it sound as though the department had a de facto quota system that encouraged officers to be reckless.

The lawsuit claims over a million dollars in damages against former Officer Kyle Bradshaw, who has since left the department. The city was dismissed from the case, but could still end up on the hook for at least part of the damages Bradshaw could be facing. Bradshaw’s attorney contends he was just doing his job. Naples police, including Bradshaw, initially responded to Bayfront for a noise complaint, and things escalated quickly. There is video of the incident, which has been played to the jury for dramatic effect for the beating allegedly given to the suspects. The trial continues in Fort Myers this week.

As if Cape Coral did not have enough trouble with some of the bad warrants they had last year as a result of the Kordelle McKissack situation we helped uncover last year, you’d think they would have really buttoned down their warrant procedure. Alas, it was reported today that SWAT broke in the door of the apartment of a 78-year old little old lady, and they were at the wrong apartment. The last one cost them several cases, and no arrest was made this time… but it will likely cost them a lot of money. The woman has post-traumatic stress disorder, and is preparing a lawsuit.

The Department claims they were technically and procedurally correct. I disagree. If you break in the door for an innocent little old lady, you’re not just failing to achieve excellence. You are seriously doing something wrong. Let’s hope that this leads to better procedures to stop these things from happening. Unfortunately, the legal remedy is for them to be punished financially through a lawsuit. We all have to pay for their incompetence, but there must be a ramification so that these mistakes teach a lesson.

NBC-2 posted the story online that included my interview about the use of cell-phone tower imitators, that go by the brand name of Stingrays, and how they are being used to collect people’s data. There are still a lot of questions about the use of these devices, in part because the government is being so secretive about it. In many cases, their use can be legal, but they should definitely implement oversight, and get oversight from the courts by seeking warrants when they are being used.

For more in the issue, USA Today has been following the issue, and has a section devoted to it, here: http://www.usatoday.com/topic/f764896f-76b5-4789-a58e-e333b9b5bcfc/cellphone-surveillance/

And here is the NBC-2 story from last night: http://www.nbc-2.com/story/34124137/cell-phone-interceptors-used-by-govt-agency-to-gather-information

This week the House Committee on Oversight and Government Reform released a bipartisan report calling for standards on how cell-phone tower simulators, known as Stingrays, are used by government agencies. We don’t know how extensively they are being used, or even how much data they are able to collect: not just from criminals, but from average citizens whose phones get caught up. We do know there have been abuses in the past.

NBC-2 is doing a story tonight, and I may show up with some comments. The Stingray, and the secrecy around the agencies’ use of the technology is troubling. There are legal means to use technology, the most straightforward is just to get a warrant. We encourage standards and oversight, especially in Florida, which leads the country in Stingray use.

This week a federal court ruled that evidence collected by use of a Stingray was inadmissible where a warrant was not obtained. Stingrays are devices that mimic cell phone towers. They allow government agents to track the whereabouts of cell phones without the knowledge of the cell phone users. It is unknown how many agencies employ the use of Stingrays, because they also promise to keep them secret when they acquire them.

The DOJ issued a policy that their agents are supposed to get warrants before using the devices. That was a smart move, predicting the legal outcome when the Stingray evidence was challenged. This investigation occurred before that change in policy, and if the Feds had continued to collect this evidence without warrants… a lot more cases would be in Jeopardy. The DOJ policy does not govern local law enforcement agencies, who stand to have a lot of evidence in jeopardy if they have not been obtaining warrants, in light of this Federal Court decision.

The link is up from last night’s NBC-2 follow-up story regarding use of surveillance cameras. The law is a little unclear, but there’s no doubt the best practice is for law enforcement to get a warrant when they are going to use the cameras: even the guy from the camera company recommends it. And everybody, prosecutors and defense attorneys, agree that when video surveillance is used, it needs to be disclosed when a case goes forward. My friend Rene Suarez, who is quoted at the beginning of the story, makes a great point: if the use of video cameras is not disclosed, it shuts the judicial system out of the analysis regarding the legality of the tactics. That’s eliminating judicial oversight. If nothing is being done inappropriately, the investigators should have nothing to hide.